Groups call for stronger FOIA

By Frank Konkel

Jan 28, 2013

Groups call for 'transparency for 2013, not 1946.' (Stock image)

A collection of open government supporters called on Congress to update the Freedom of Information Act Monday, claiming its 20th century requirements are not encouraging enough transparency and openness from federal agencies.

"FOIA needs to be stronger," said Gavin Baker, open government policy analyst at the Center for Effective Government.

Baker was one of more than a dozen speakers making policy suggestions to Congress through the Advisory Committee on Transparency’s Jan. 28 "Kick-starting the 113th Congress" event on Capitol Hill.

Baker said FOIA, unaltered since the E-FOIA Act of 1996, needs a 21st century framework that encourages proactive disclosure of information by agencies and reduces exemptions to the public.

Right now, "agencies are allowed to behave like a kid failing math class," owning up to failures only when caught, Baker said.

Baker said Congress should establish an affirmative obligation to disclose information, forcing agencies to develop procedures to proactively identify information of public interest and posting it online. He also called for expanded mandatory disclosures, like spending data, contract and grant documents, and calendars of senior officials

In addition, Baker said a strengthened FOIA would only succeed if backed by stronger enforcement and accountability mechanisms, like regular Congressional assessments and requiring agencies to report on proactive disclosures.

"We need transparency for 2013, not 1946," Baker said. "Today, the government has higher technology. Let’s take the next step."

Rick Blum, speaking for the Sunshine in Government Initiative, said FOIA could benefit significantly from a few "common-sense exemptions" rather than the "250 to 300" exemptions agencies have used, essentially "carving loopholes in FOIA."

Information like that pertaining to internal agency deliberations or national security is already protected under FOIA, Blum said, but some agencies skirt the law by exempting information under existing loop-holes or the dozens of new ones proposed each year. As a result, Blum said transparency is thwarted and delayed.

Justin McCarthy, of the government watchdog group Judicial Watch, said agencies are abusing specific (b)(5) exemptions as well, using them to "shield all manner of documents from release." The exemption is supposed to apply only to interagency or intra-agency communications which would not be available by law to a party in litigation with the agency.

Congress needs to "take the (b)(5) exemption back to its original purpose, rather than a catch-all exemption" an agency can use "to withhold whatever it pleases," McCarthy said.

The calls to Congress to strengthen FOIA might fall on deaf ears with so many issues looming, Baker said, but stressed that it is important the public realizes that FOIA in its current state is falling short.

"Some agencies get it, some members of Congress get it, but right now, FOIA is not working well across the board," Baker said.